Lawyers are no laughing matter

The Ethics and Conduct of Lawyers in England and Wales
March 24, 2000

Do lawyers have ethics? As members of a group vulnerable to the most macabre of jokes, they rival mothers-in-law. This unpopularity is a function of various factors: their involvement usually, but not universally, in situations of stress (for their clients); their legendary (and in truth partly mythical) appetite for fees; and the appearance of moral vacuity conferred by their seeming ability to argue one point one day, another the next, and both without any backing of personal belief.

And yet both branches of the profession in England and Wales, barristers and solicitors, have - and have always had - an elaborate structure of imperatives that underpin their activities, in court and outside it. It is a blend of legislative provision, internal code and convention, described in its modern incarnation in this thoughtful book, which is certainly the most scholarly and detailed of its kind.

As the authors recognise, the legal profession overall has been exposed to an ever-increasing variety of outside pressures. Solicitors, historically the junior but increasingly the more powerful and certainly the larger branch of the profession, have since the 19th century had a statutory underpinning. The Bar, too, has far more recently had its traditional right to self-regulation infringed by the Court and Legal Services Act (1990) and the Access to Justice Act (1999). And there are more subtle but no less compelling cultural influences - commercialism, consumerism and competition within the professions, between them and with outside groups. Although Lord Justice Staughton recently suggested in a judgment that some of the profession's ethical rules have had the appearance of protectionism and of being not at all concerned with the public interest or the proper administration of justice by way of comment on the contemporary legal scene, this is less than completely fair.

As in so many walks of life, image lags 20 years behind reality. Solicitors and barristers, seen so often as the reactionary and unwilling victims of change, have now become its agents. One example is the decision of a group of barristers earlier this year, with the prime minister's wife prima inter pares , to set up an entirely new "matrix chambers", dedicated to modern administration, the erosion of the barriers between practitioners and academics, the measured carrying out of pro bono work, the unification of disparate specialities under the flag of the Human Rights Act (1998), responding to the most convulsive change in English substantive law since the United Kingdom's accession to the Common Market - which will require the book's somewhat bland description of barristers' practising arrangements to be amended in any second edition. The merger mania affecting major City solicitors firms, such as Clifford Chance and Linklaters, is another example. The old values are transplanted to new terrain.

Certain principles remain fundamental: above all the cab-rank rule that obliges members of the Bar not to refuse to represent anyone because of disagreement with the cause or dislike of the personality. This rule, the authors suggest pessimistically, can be avoided by barristers by resorting to many exceptions, and may be imitated in practice by solicitors who are not formally subject to it. But if solicitors are to enjoy, as they now can, advocacy rights in the highest courts, it is surely right that they should carry the duties of an advocate. And if barristers are to continue to command respect, they must permit no erosion of the rule by reference to the transient dictates of political correctness.

The cab-rank rule itself reflects the imperative notion of the independence of the lawyer from his client. A lawyer is an agent; he or she does for a client what the latter is not equipped to do for him or herself. (The client's right to the lawyer's confidentiality is a signal of the importance of the trust created by the client-lawyer relationship.) The client is entitled to the benefit of the lawyer's views; but the views that the lawyer will promote are the views of the client. The answer to that hoary but irresistible question "How can you represent someone you know to be guilty?" is that you (the lawyer) represent; you do not judge - that is for others. But your right to represent a client stops short of a right to mislead the court: the intricacy of the lawyers' codes derives precisely from the fact that the duties they owe are not single but multiple, and sometimes in disagreement.

These key duties of secrecy, diligence and fidelity are of ancient origin,summed up by Law Commissioner Whitelock in his address to the new serjeants-at-law (an obsolete legal tribe) in 1648. But one of the book's most interesting themes is provided by the tension between those client-driven duties and perceived duties to society overall. Lawyers may assuage their (admirable) social consciences by political activity, by campaigning for causes they deem worthy, by serving on public and charitable bodies. But for my money such actions should be seen as separate from their legal functions. A lawyer can be, and should be, a good citizen: but as a lawyer his duties to client and court suffice. The lawyer is there to oil the wheels of justice according to the rules of the game - no more, but certainly no less.

The book is admirably replete with material. I could not suppress a chuckle at one error - attribution to Sir James (not Peter, a new Labour peer) Goldsmith of chairmanship of a recent Bar committee. Sir James's notion of legal ethics would have been very different from that described by these authors.

Michael J. Beloff is a Queen's Counsel and president, Trinity College, Oxford.

The Ethics and Conduct of Lawyers in England and Wales

Author - Andrew Boon and Jennifer Levin
ISBN - 1 84113 019 2
Publisher - Hart
Price - £16.00
Pages - 418

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